Employment Equality Acts
Decision No: DEC-E/2017/025
Karolina Poslajko
(Represented by Hoban Boino Solicitors)
-v-
Clelands Supermarkets Ltd.
(Represented by Peninsula Business Services (Ireland) Ltd.)
File No: et-158626-ee -15
Date of issue: 24 May, 2017
Keywords
Employment Equality Acts - discriminatory treatment - pregnancy- prima facie case - victimisation
1. Dispute and delegation
1.1 This dispute concerns a claim by Ms. Karolina Poslajko (“the complainant”) that she was subjected to discriminatory treatment in her working conditions by Clelands Supermarkets Ltd. (“the respondent”) on the grounds of gender in terms of Sections 6 of the Employment Equality Acts and contrary to the provisions of Section 8 of those Acts. In this regard, she alleges that when she notified the respondent that she was pregnant in late August 2014, her hours were subsequently reduced from 39 hours to 24 hours per week. She also states that she was forced into signing a final written warning a month prior to the commencement of her maternity leave. She further claims that she was subjected to victimisation by the respondent in that when she returned from maternity leave her hours were further reduced to 8 hours (1 day) per week.
1.2 The complainant referred a claim of discrimination to the Director of the Equality Tribunal on 6 August 2015 under the Employment Equality Acts. On 10 November, 2016 in accordance with her powers under section 75 of the Acts, the Director then delegated the case to Valerie Murtagh - an Equality Officer - for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. As required by section 79(1) of the Acts and as part of my investigation, I proceeded to hearing on 12 December 2016. Final documentation was received on 9 May 2017.
2. Summary of the Complainant’s case
2.1 The complainant commenced work with her employer as a cashier in the supermarket business in September 2007. A transfer of undertakings took place in June 2014 and all employees were transferred to the respondent business. The complainant states that prior and post the transfer of undertakings, she worked in the post of cashier with the exception of sporadic days where she was requested to work on the floor. The complainant submits that in or around 29 August 2014, the complainant communicated the news of her pregnancy to the respondent and the manager personally congratulated her on her pregnancy. The complainant states that she submitted a letter to the respondent from her GP confirming her pregnancy. The complainant maintains that around 8 September 2014, the complainant was invited to attend the manager’s office where he informed her that she was not working to the expected standard and that she was appearing unrepresentative on behalf of the company. The complainant submits that she attempted to explain to her manager that it was due to her morning sickness. The complainant states that in response to this, her manager explained that if she does not feel well then she should not appear in work. The complainant submits that following this meeting, her hours were reduced from 39 hours per week to 24 hours per week. The complainant states that while the respondent has argued that the reduction was justified by the downturn in business it was not extended to the workforce at large. The complainant contends that following the reduction of the complainant’s hours, the employer hired three new employees. The complainant submits that a month prior to the commencement of her maternity leave, she was called to the manager’s office and he expressed his dissatisfaction with her performance and coerced her into signing a formal written final warning. The complainant states that she was forced to sign the document as it was made clear to her that if she did not do so, she would lose her job. The complainant states that she could see no other option and was fearful that she would not be eligible to obtain her maternity leave if she was dismissed by her employer. The complainant submits that this action by the employer one month prior to her going on maternity leave was very distressing for her particularly at this stage of her pregnancy.
2.2 The complainant submits that she commenced her maternity leave on 13 April 2015 and shortly after on 25 April gave birth. The complainant notified the respondent of her availability to return to work on a full-time basis about two weeks prior to the ending of her maternity leave. The complainant states that she was due to return to work on 12 October 2015 but obtained a further 8 days annual leave and subsequently returned to work on 26 October 2015. The complainant states that on 12 October 2015, she was called into the manager’s office where she was informed that her position may be subject to redundancy. The complainant maintains that she was the only person who was subject to a potential redundancy as no other employee working in the same post as her received such a letter or notification. The complainant submits that subsequently her hours were further cut from three working days to one working day from 26 October 2015. She states that no other employee had their hours cut to only one day per week. The complainant submits that such an action by the respondent constituted further discriminatory treatment of an employee who was returning from her maternity leave and was entitled to the same working conditions or at any rate terms and conditions that were not less favourable treatment. The complainant submits that she was the only person who was furnished with a potential redundancy letter and she was the only person who had their hours reduced to 1 working day per week and submits that this amounts to victimisation. In relation to the claim of victimisation, the complainant submits that she lodged her claim with the WRC on 6 August 2015 while she was out on maternity leave and upon her return to work, the complainant was subject to penalisation in the form of reducing her working hours to 8 hours thus reducing her weekly pay. The complainant contends that this reduction was not motivated by an economic downturn as stated by the respondent.
2.3 The complainant submits that she has demonstrated prima facie evidence of discrimination. She further submits that the close proximity of the discrimination to the complainant’s announcement of her pregnancy is a fact of sufficient consequence to discharge the complainant’s burden of proof and cites the case of Rabbitte v EEC Direct DEC-E2008/07 in this regard. The complainant states that there is inconsistency in the evidence of the respondent in that there is a document which issued on 23 June 2015 stating that the hours were reduced due to a reduction in turnover and a separate document issued on 22 July 2015 stating that the hours were reduced as a penalty for the complainant’s poor performance. The complainant states that under Article 6 of the Pregnancy Directive, the employer is under a duty to carry out a risk assessment for the pregnant worker and then to take appropriate measures to facilitate the pregnant worker in the workplace. It was submitted that the respondent did not conduct such an assessment in respect of the complainant.
3. Summary of the Respondent’s case
3.1 The respondent states that it operates a supermarket chain. The complainant had been employed by the previous owner since September 2007. There was a transfer of undertakings in June 2014 and all staff transferred to the respondent company. The complainant was employed as a shop assistant and her duties consisted of stock replenishment, customer service, general cleaning, product labelling and any other duties that may be required during the course of grocery retail operations. The respondent submits that the complainant did not inform it of her pregnancy. In addition, the respondent submits that it did not receive a letter from the complainant’s GP with confirmation of her pregnancy. The respondent submits that it asked the complainant if she was pregnant when she began to display signs of pregnancy. The respondent submits that he noted the complainant’s performance had declined over the Summer months, she already had received two verbal warnings since January 2014 concerning poor performance. The respondent submits that her hours were reduced purely on the basis of performance issues, in that, the complainant was lazy, not helping out the other employees at the check-outs, not assisting in placing stock on shelves, standing around chatting instead of working etc. The respondent states that on 8 September, the complainant was invited to a disciplinary hearing and she was given a further verbal warning and informed that her hours were being reduced to enable her performance issues to be addressed. The respondent maintains that he has used this method with other employees in the past as the reduced hours allowed less duties and more time to rectify the performance issues. The respondent states that in relation to the point made by the complainant that three new employees were hired at this time; it states that one of those persons was on work experience from the local school and was unpaid, another male employee was hired to drive a van and another staff member was hired for weekend work when the respondent was short staffed for cashier and shopfloor work.
3.2 The respondent refutes that the complainant informed it that the decline in her performance was due to her pregnancy or indeed that she gave any medical reason for this decline in performance. The respondent states that when the complainant received her final written warning, she worked an average of 27 hours per week. The respondent refutes the allegation that she was forced to sign the written warning which was countersigned by another staff member. The respondent submits that the complainant did not raise any grievances relating to her treatment or her hours of work. The respondent states that while it did not have a formal grievance procedure, it had an informal method of dealing with employee issues whereby the employee would inform the store manager of any difficulties or concerns. The respondent submits that when the complainant’s pregnancy came to his attention indirectly, the complainant was moved from the shop floor to tills where a seat was provided and she was advised not to undertake any strenuous activity. The respondent states that the complainant commenced maternity leave on 13 April 2015. The respondent states that the complainant notified it of her availability to return to work on a full-time basis but the respondent disputes that the complainant was ever a full-time employee and states that her hours were variable. The respondent submits that it experienced a substantial downturn in business during this period and this is evidenced in its management accounts. The respondent states that all employees felt the effects of the downturn and there were four employees made redundant at this time. As examples, the respondent submits that three employees who were working on 40 hours per week contracts had their hours reduced to 24 hours per week. One employee had her hours reduced from 40 to 24 to 9 hours per week. Another employee had his hours reduced from 40 to 37 hours and a manager had his hours reduced from 45 hours per week to 42 hours. In conclusion, the respondent refutes the allegation of discrimination and states that the complainant’s hours were reduced on her return from maternity leave on the basis of the substantial downturn in the business, ensuing redundancies which culminated in the winding up of the business. In conclusion, the respondent refutes the allegation of discrimination and victimisation against the complainant and submits that there is no basis for such claims.
4. Conclusions of Equality Officer
4.1I have considered all the evidence both written and oral presented to me. Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to her. If she succeeds in doing so, then, and only then, is it for the respondent to prove the contrary. The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the respondent. In deciding on these complaints, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. In a previous Determination, the Labour Court[1], whilst examining the circumstances in which the probative burden of proof operates, held as follows –
"Section 85A of the Acts provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”
The first issue for decision by me in this case is whether or not the complainant was discriminated against on the gender ground by reason of pregnancy in relation to her conditions of employment and the next issue for consideration is whether or not the complainant was victimised by the respondent by a reduction in her hours to 8 hours (1 day) per week on return from her maternity leave.
It is evident from a line of authorities starting with the decision in C-177/88, Dekker v Stichting Vormingcentrum voor Junge Volwassenen [1990] ECR 1-3841 and from the legislative provisions of the European Union that women are to be afforded special protection from adverse treatment from the commencement of their pregnancy until the end of their maternity leave. The jurisprudential principle that discrimination on the ground of pregnancy constitutes direct discrimination on grounds of sex is now codified in Directive 2006/54/EC on the Principle of Equal Treatment of Men and Women (the Recast Directive). This Directive provides at Article 2. 2 (c) that any less favourable treatment of a woman related to pregnancy or maternity leave within the meaning of Directive 92/85/EEC constitutes unlawful discrimination for the purpose of that Directive.
Directive 92/85/EEC (the Pregnancy Directive) provides a comprehensive legal framework in which special protection is afforded to the safety, health and welfare of pregnant women in employment.
4.2 Having carefully examined all the evidence, there is a substantial conflict in the evidence given by the complainant and the respondent. The complainant claims that she gave her employer a letter confirming her pregnancy in late August 2014 (letter from GP confirming her pregnancy provided in evidence) and within a few weeks was called to a meeting and given a further verbal warning (the respondent submits that the complainant was already given two verbal warnings regarding her performance since January 2014) and advised that her hours were being reduced. I am of the view that given the proximity of the complainant informing the respondent of her pregnancy and the cut in the hours; these actions are sufficient to demonstrate a prima facie case of alleged discrimination and in such circumstances the onus is on the respondent to rebut said inference. The respondent states that he never received a letter relating to the complainant’s pregnancy and only noticed some time later in the year that the complainant was visibly pregnant. Having taken witness testimony on the day of the hearing and given the letter provided by the complainant from her GP, I prefer the evidence of the complainant on this matter. I note from the submissions on file that the respondent has given contradictory evidence in relation to the reduction in hours, in one instance he said it was due to the downturn in business, in another document it was stated that it was due to her poor performance and he would have used this technique in the past in the same manner for persons who were not working to optimum levels. On balance, I prefer the evidence of the complainant on this matter as her evidence was more cogent and compelling and there were too many inconsistencies in the evidence given by the respondent. I also note that the complainant, about one month prior to the commencement of her maternity leave, was requested to sign a final written warning by the respondent which was witnessed by another employee of the respondent Mr. M and countersigned by the respondent. I note that the complainant did not have a witness present at that meeting nor did she have an interpreter present to outline to her the nature of the content of that meeting. The complainant maintains that she signed the document and did so on the basis that she may be dismissed and would not receive her maternity benefit entitlements. I find the action of the respondent in this regard heavy handed and not in line with fair procedures. In addition, the respondent’s actions in this regard infringe and do not take into consideration the protections that are provided in statute to pregnant workers in employment. In the circumstances, I find that the complainant has established a prima facie case of discrimination on the grounds of gender in relation to her conditions of employment in respect of the treatment of her by the respondent following the announcement of her pregnancy by (i) the reduction in her hours and (ii) requiring her to sign a final written warning prior to her maternity leave. I am mindful of the Labour Court determination in the case of A Technology Company v A Worker EDA 0714 where it adopted the reasoning of the Employment Appeals Tribunal for Great Britain in Barton v Investec Henderson Crosthwaite (Gibson LJ) [2003] IRLR 322 and held that since the facts necessary to prove a non-discriminatory explanation would usually be in the possession of the respondent, the Court should normally expect cogent evidence to discharge that burden. Applying that test to the present case, I find that the respondent offered no cogent evidence to rebut the inference of discrimination raised. Having adduced the totality of the evidence on this matter, I am satisfied that the respondent did not demonstrate that the less favourable treatment of the complainant was unrelated to the complainant’s pregnancy and accordingly, I find that the complainant was subjected to discriminatory treatment by the respondent on the grounds of gender in relation to her conditions of employment.
4.3 The complainant has also submitted that she was subjected to victimisation, in that, when she was out on maternity leave and requesting to return on full–time hours, she was advised that her hours were being further reduced and she was down to one day per week. In relation to the issue of victimisation, Section 74 (2) states:
…..victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to-
(a) a complaint of discrimination made by the employee to the employer,
(b) any proceedings by a complainant, …….”
Having examined the submissions including the management accounts of the respondent company, it is clear that there was a substantial downturn in the business and the company had serious financial issues at this juncture. The company suffered substantial losses at the start of 2015 which continued throughout the year. There were four employees made redundant in March 2015 and employees were subject to a first round of cuts and then a further round of cuts to hours of work culminating in the winding up of the business in mid 2016. I note from the submissions supplied that a large number of employees had there are hours cut down substantially in order to make the business viable but the losses were sustained and the business had to be wound down. Having adduced the totality of the evidence in relation to the claim of victimisation, I find that there is no prima facie case in the circumstances and the reduction in hours following the complainant’s return from maternity leave on 26 October 2015 was due to the heavy losses sustained in the business which ultimately resulted in the business going bust a number of months later. In these circumstances, I find that the complainant was not subjected to victimisation by the respondent.
5. Decision of the Equality Officer
5.1 In reaching my decision, I have taken into account all the submissions, written and oral that were made to me. Having investigated the above complaints, I hereby make the following decision in accordance with section 79(6) of the Employment Equality Acts.
5.2 I find that the respondent did discriminate against the complainant on the gender ground pursuant to section 6(2) of the Acts and contrary to the provisions of section 8 of the Acts in relation to her conditions of employment.
5.3 I find that the complainant was not subjected to victimisation by the respondent.
5.4 In accordance with section 82 of the Acts, I order the respondent to pay the complainant the sum of €6,000 by way of compensation for the distress suffered as a result of the discrimination. This figure relates to compensation for the effects of the discriminatory treatment and does not include any element relating to renumeration.
____________
Valerie Murtagh
Equality Officer/Adjudication Officer
24 May, 2017
Footnotes
[1] Arturs Valpeters v Melbury Developments [2010] 21 E.L.R. 64.